An Article 32 preliminary hearing was held over the weekend to consider allegations of rape of a child by retired Army Major General James J. Grazioplene. According to this associated press report:

The Washington Post obtained charging documents under the Freedom of Information Act that show Grazioplene is accused of committing rape on six occasions between 1983 and 1989 while stationed in the United States and Germany.

Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.

But the Grazioplene case raises a different issue: whether the prosecution is barred by the statute of limitations. Article 43 contains a broad, five-year statute of limitations, and the exception for child abuse offenses wasn’t added until 2003. In United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008), CAAF held that the change was prospective only:

Considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively to cases such as this, the general presumption against retrospective legislation in the absence of such an indication and the general presumption of liberal construction of criminal statutes of limitation in favor of repose, we decline to extend the reach of the 2003 amendment to Article 43, UCMJ, to cases which arose prior to the amendment of the statute.

Update / Correction: Except that in 1986 Congress amended Article 43 to eliminate any statute of limitations for “any offense punishable by death,” and rape was at the time a capital offense.

News reports about the Grazioplene case (including this military.com story and this Washington Post story) provide little additional detail about the facts of the case.

18 Responses to “The Army moves to court-martial a retired general officer”

  1. evindman says:

    This case was charged as rape. The statute was amended in the fall of 1986.

  2. Zachary D Spilman says:

    The 1986 amendment didn’t extend the statute of limitations for rape. See 100 Stat. 3816, 3908 (1986) (link)

     

  3. Zachary D Spilman says:

    Slapping my forehead here. The 1986 amendment eliminated the statute of limitations for “any offense punishable by death,” and rape was at that time a capital offense. So you’re right evindman. Thank you for pointing out my error.  

  4. Rachel V. says:

    But there is still an SOL issue or issues here, as I informed the WaPo reporter (whom I also told about the 1986 SOL change). While I haven’t seen the charge sheet, apparently there are allegations from 1983 which, per the Sp Ct in Stogner, would carry the 3-yr SOL (not 5, it was 3 at the time). However, they would only have 3 yr SOL only IF the original 3 years had not yet expired by the time the  1986 elimination of all SOLs for offense “punishable by death” came into effect – am I wrong in thinking that the 1986 change didn’t come into effect until November 1986, which is what is on the statute itself? So unless D’s 1983 misconduct occurred in Nov and Dec, it’s tolled. Stogner prohibits retroactive application of SOL changes, but ONLY if the crimes’ original SOL period has not yet expired. At least that’s how the lower courts have interpreted it. Separately, though much more ambiguous, and there’s a CAAF opinion somewhat on point but not wholly (and a terribly reasoned May NMCCA case May 2017) — is the issue that in 2008 the Sp Ct made quite clear that death penalty for rape of a child is unconstitutional.  And this has retroactive application of course.  So does this retroactively remove rape of a child from the 1986 -2006 SOL bootstrap “offenses punishable by death” SOL provision?  At the end of the day, I don’t think so, and neither does CAAF apparently, but a decent argument could be had that CAAF got things wrong…..  NMCCA actually says that clearly Sp Ct in 2008 was only considering the death penalty for child rape in civilian jurisdictions, and not the military…..  Cough cough this is pretty specious reasoning……  A better argument is that a later change to the constitutionality of the death penalty does not retroactively affect  a SOL that was based on attachment of such penalty.  Interesting stuff!

  5. Charlie Gittins says:

    I am guessing they charged rape BECAUSE of the statute of limitations problem. 

  6. Rachel V. says:

    Typo correction /clarification to above, apologies: Stogner has been interpreted to prohibit retroactive application of SOL changes to those crimes whose original SOL has already expired. Hence if a May, 1983 crime carries a three-year SOL, a Nov 1986 SOL change to “no” SOL would have no effect as the May 1983’s original SOL has already tolled.  But a December, 1983 crime would carry the new SOL (here, of none) because the original SOL period had not yet expired hence it’s not considered an otherwise prohibited retroactive application of the SOL…..    Again, interesting esoteric stuff.

  7. Cloudesley Shovell says:

    If I remember correctly from research I did on this precise issue 18 years ago, the purpose of changing Art. 43 was to make the UCMJ limitations period much more like that for other federal criminal law (generally 5 years and unlimited for crimes “punishable by death.”)  That very same year, as I recall, the same Congress amended federal criminal law (but not the UCMJ) to get rid of the death penalty for most crimes, including rape.  Thus, in the name of conformity, Congress reduced the limitations period for rape from unlimited to 5 years under federal law, and increased it from 3 years to unlimited under military law.  Business as usual.

  8. Defense Wizard says:

    Have fun seating that panel.

  9. Michael Korte says:

    I’d imagine it won’t be that difficult.  A 4-star will tell a group of 2-stars to show up in a courtroom, and they will.  Bonus: Assuming the government is confident in its charging, actually having a court-martial beats punting on a child rape.

  10. Concerned Defender says:

    Last sentence of the article says COL Lanny Acosta is the hearing officer.  I think I’ve read enough – it’ll go to trial.   

  11. Defense Clownsel says:

    CD, what’s your experience with Acosta?  I haven’t heard of a reputation either way on him.

  12. slyjackalope says:

    COL Acosta was very fair when he was the CoJ at I Corps and is definitely not a Government hack.  That’s not cool presuming you know what he’s going to do unless you have some reason for thinking otherwise that you would like to share.

  13. TC says:

    jackalope,
    You must be new here.  Not cool is right in CD’s wheelhouse.

  14. Concerned Defender says:

     

    slyjackalope says:
    August 29, 2017 at 9:49 AM  
     

    COL Acosta was very fair when he was the CoJ at I Corps and is definitely not a Government hack.  That’s not cool presuming you know what he’s going to do unless you have some reason for thinking otherwise that you would like to share.

    Then I suppose you are not aware or indifferent to when COL Acosta was literally laughing and giggling in the halls of the OSJA immediately following Major Smith’s ruined life and wrongful conviction and egregious 2 year confinement handed out on faulty evidence and wrongful conviction?  Effectively rubbing salt in the wounds of the defense counsel who were present?  Oh yeah, that reputation is going to follow him.  So is that the Lanny Acosta you’re defending?!?!  I wonder if he’s ever practiced defense – because I don’t know for sure but I think his career has been 100% prosecution and (scary) MJ time. 
    Not only did his prosecutors prosecute an innocent man, and convict him over his pleas and the OBVIOUS evidence he wasn’t a cocaine user, but the sentence was over-the-top egregious based on the allegation.
    Thankfully, Mr. Cassara here represented MAJ Smith on appeal and got justice and the case was overturned.  
    https://courtmartial.com/army-court-of-criminal-appeals-overturns-my-clients-conviction-for-cocaine-use-because-his-defense-counsel-was-inadequate-during-the-court-martial/
     http://www.seattletimes.com/seattle-news/crime/cleared-by-army-court-military-doctor-now-battles-to-practice-medicine-again/

  15. stewie says:

    Obvious evidence? You mean the obvious evidence ACCA overturned the case on because the Defense Counsel failed to either get it or admit it? That obvious evidence? Did you even read your own links?
     
    “Laughing and giggling in the halls.” do tell. You know for a fact it was about the results of this case, and that COL Acosta KNEW that the case was a miscarriage of justice and not a garden variety urinalysis hot of a doc already dealing with alcohol issues?
    It gets real tiring watching you, with impunity apparently, talk trash about a whole of lot of folks.

  16. slyjackalope says:

    Concerned Defender,
    That’s a very interesting story.  So much so that I just spoke with one of MAJ Smith’s defense counsel and she doesn’t remember anything of what you just wrote about COL Acosta doing immediately after MAJ Smith was convicted having happened.  I think that’s even more interesting.

  17. stewie says:

    One wishes there were repercussions for being so loose with the truth.

  18. k fischer says:

    Although this is not a foolproof method, I’ve always read opinions to look for MJ’s leanings.  The only sex assault case that I have seen reviewed where this MJ has sat is this one:

     

    At trial, the government sought to admit the prior statements of a child, Miss HC, made during a forensic interview that she had been abused by the accused. The child is available to testify, but has recanted what she said during the interview. The military judge found, and all parties agree, she is expected to testify at trial there was no abuse by the accused.

    The military judge excluded HC’s pretrial statements under the residual hearsay exception after determining the statements were not the “best evidence on the issue of whether the alleged abuse occurred.” The military judge determined as HC was willing to testify, her testimony would be the best evidence—notwithstanding she would deny the abuse. We find the military judge erred and therefore set aside his ruling and return the case to him for reconsideration in light of this opinion.1

    U.S. v. Cleveland, ARMY MC 20170268, 2017 WL 2628868, at *1 (Army Crim. App. June 16, 2017)
     

    Not allowing a child’s prior inconsistent statement in as evidence under the residual hearsay rule doesn’t sound to Government hackish to me.
     
    But, on the flip side, I have also read US v. Smith, as I am a big fan of his appellate counsel’s work.  I’ve always wondered why the Government did not agree to the continuance, notwithstanding the entire one year that his DC did not obtain the lit packet for the hair follicle test. I remember something about a prosecutor’s job is not about obtaining convictions, but to ensure justice is done, or something like that….
     
    I can’t imagine that a continuance request would not have gone unnoticed by a CoJ, particularly in an Officer Court-martial.  I actually had a client exonerated by a hair follicle test, and I told him that I really had a hard time believing him prior to him obtaining one and the TC calling me and saying “Quack Quack, we foxtrot uniformed.”  So, if I were the CoJ at I Corps, then I probably would have told my TC’s to agree to the continuance or waive objections to the admission of the results of the hair follicle test.  But, the CoJ who wouldn’t do that might be the kind of CoJ who would be out in the hallway laughing and giggling about the case after the sentence.

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